Drinkwitz v. Drinkwitz

2015 Ark. App. 345, 464 S.W.3d 489, 2015 Ark. LEXIS 380, 2015 Ark. App. LEXIS 426
CourtCourt of Appeals of Arkansas
DecidedMay 27, 2015
DocketCV-14-979
StatusPublished
Cited by1 cases

This text of 2015 Ark. App. 345 (Drinkwitz v. Drinkwitz) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drinkwitz v. Drinkwitz, 2015 Ark. App. 345, 464 S.W.3d 489, 2015 Ark. LEXIS 380, 2015 Ark. App. LEXIS 426 (Ark. Ct. App. 2015).

Opinion

BART F. VIRDEN, Judge

|,Appellant Malia Drinkwitz appeals from the Crawford County Circuit Court’s order granting visitation with Malia’s children, M.D.1 and M.D.2, to the paternal grandparents, appellees Jerry and Susan Drinkwitz. On appeal, Malia argues that the trial court erred' in granting visitation becausé the Drinkwitzes failed to prove that visitation was in the children’s best interest given that (1) they had not lost their relationship with the children, (2) they could show- no harm that came from limiting their contact, and (3) they, had demonstrated an unwillingness to cooperate with her concerning visitation. We agree in. part with Malia’s first point and therefore reverse and vacate the visitation order.

L. Factual Background

Malia and the children’s father, Zachary Drinkwitz, divorced in December 2010, and Malia was awarded custody of the children. There was evidence that Zachary’s drug abuse was a factor in the divorce. Zachary neither regularly exercised his visitation rights nor paid Lany child support; however, his parents, the Drin-kwitzes, had frequent contact with the children.

In August 2013’,' the Drinkwitzes filed a motion for grandparent-visitation rights. They alleged that, although they had always maintained a close relationship with the children, Malia had begun keeping the children away from them. Malia denied this - assertion; - In April '2014, the trial court entered a temporary order establishing a visitation schedule. In the final order, the trial court granted visitation rights to the Drinkwitzes. From that order comes this appeal.

II. Hearing in June 201k

Susan testified that after Malia’s divorce from her son, the children continued to attend family holiday events and birthday parties. Also, the Drinkwitzes continued to babysit as needed and to pick up the children from school. According to Susan, between August 2012 and July 2013, they probably saw the children at least once a month.

The evidence showed that some time after August 2012, the children were at the Drinkwitzes’ home visiting, and Zachary was present. Despite Malia’s specific request that Zachary not be left alone with the children, the Drinkwitzes permitted him to take the children on what they thought was a quick trip to Dollar General. Instead, Zachary took the children to the home of his girlfriend, who was said to have “major drug issues,” and introduced them to their new half brother, whom they did not know about. Malia was upset when she discovered where they had gone. Susan, while denying any prior knowledge of Zachary’s intentions, conceded that she used very poor judgment in permitting her son to | stake the children. Susan testified, however, that, even after that incident, Malia permitted them to see the children.

Susan testified that they did not see the children over Christmas 2012 and that it was not until mid-January 2013 that the children got their Christmas presents. January 2013 was the first time Malia had not allowed the children to travel with them to attend another grandchild’s birthday party in Northwest Arkansas. The Drinkwitzes saw the children in March for their annual daffodil, trip, but they did not see the children again until the end of July or early August when they met at a mall. According to Susan, Malia told her at that time that “she was starting a new life”; that they would be moving soon; and that it was time to “cut off all emotional ties with the family.” Susan claimed that she asked for visitation between March and July but that her phone calls and text messages went unanswered by Malia, which she said was unusual. Susan testified that Malia had explained in a text message that they were busy, and Susan conceded that Malia was working with them on visitation “in her way,” After the Drinkwitzes filed their petition in August, Malia did not bring the children by to visit in September, October, and November 2013, but the Drinkwitzes saw the children around Christmas 2013.

During those months before Christmas, Susan appeared at M.D.l’s school without Malia’s permission with balloons and a card instructing, the child to ask Malia . to come by the Drinkwitzes’ house. On another occasion, Susan passed a note to M.D.l’s friend to give her saying that her father was fine after having been beaten with a baseball bat and encouraging her to hide the note in her desk at school. Susan conceded that her actions were ^inappropriate and may have contributed to a breakdown of trust.with Malia. Susan testified that she had no complaints about Malia as a mother and her ability to make decisions that were in the best interest of her children.

Jerry testified that he and Susan filed for grandparent-visitation rights because they wanted “some sort of known amount of time” with the children. He stated that, even though they had been seeing the children all along, he felt like they had lost a relationship with the children in 2013 because Malia was “road-blocking” them. According to Jerry, after Susan went to M.D.l’s school,' Malia threatened to get a restraining order.

Malia testified that she was engaged to be married and wished to .move out of state. 1 Malia agreed that prior to 2012 the Drinkwitzes had more access to the children but insisted that she did not cut off contact with them. She said that she had asked the Drinkwitzes to speak with her first about activities, instead of getting the children’s hopes up, but that they had simply gone around her. Malia testified that, when they met at a mall in July 2013, she asked Susan not to remind her children that they had missed another grandchild’s birthday party or tell how their cousin had cried when he did not get to see them- because -news of that sort upset the children.

Malia read a text message she had sent to Susan: “While I Mil continue to have [M.D.l' and M.D.2] have time Mth you, T do not feel that strong family ties Mth the rest of the family should be encouraged.” Malia explained that, while she had no problem Mth the ^children seeing their cousins, other family members had called her 1 a bitch, said she was- “crazy and bipolar,” threatened her, and suggested that she was taking drugs. Malia expressed her concern that those family members would speak negatively about her and try to turn her children against her.

Malia testified that she wanted the children to know their grandparents. She said that she had never not permitted the DrinkMtzes to see the children but that she wanted to be able to put parameters on the visitation. . Malia said that she would permit the DrinkMtzes, to, see the children even if the court denied their request for visitation rights. She testified that after the case was heard in February 2014, the visitation resumed at that time. Malia testified that the DrinkMtzes did not ask for visitation after they filed their petition and that she was uncertain whether she could''contact them while the litigation was pending.

The attorney ad litem, Cheryl Anderson, submitted a report 1 following the hearing.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tracey Burris v. Kristen J. Simmons and James M. Simmons
2023 Ark. App. 432 (Court of Appeals of Arkansas, 2023)

Cite This Page — Counsel Stack

Bluebook (online)
2015 Ark. App. 345, 464 S.W.3d 489, 2015 Ark. LEXIS 380, 2015 Ark. App. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drinkwitz-v-drinkwitz-arkctapp-2015.